JUDICIAL REVIEW IN

MALAWI
CURRENT PRACTICE AND PROCEDURE
25th April, 2025
PART I:
WHAT IS JUDICIAL REVIEW?
What is Judicial Review?
Judicial Review has been legally defined by several case law as follows:
In Mzuzu City Assembly v Jenala Peter Wandaza Chitete MSCA Civil
Appeal No. 26 of 2007 Singini JA, stated:
“Judicial review is a public law remedy.
Where a person seeks to establish that a decision of a person or body
infringes rights which are entitled to protection under public law, he
must, as a general rule, proceed by way of judicial review. O’Reilly v
Mackman [1983] AC 237.”
In Ex Parte Chilumpha Constitutional Cause No. 5 of 2006 the
High Court sitting as Constitutional Court (comprising Chipeta J,
Potani J and Kamwambe J) stated:
“Judicial review, as currently understood and accepted, is a
procedure for the exercise by the High Court of its supervisory
jurisdiction over the proceedings and decisions of inferior courts,
tribunals, or other persons or bodies which perform public duties or
functions . . . .
As aptly put by Lord Hailsham L.C. in Chief Constable of North
Wales Police v Evans (1982) 1 WLR 1155 at 1160, judicial review
is concerned with reviewing, not the merits of the decision the
application relates to, but rather the decision-making process. In
the application before us, to avoid reviewing what the law forbids
us to so review, we should really be looking for proceedings and/or
decisions, conducted of made by inferior courts or tribunals or by
persons or bodies performing public duties or functions, and only
when we find such should we check whether the decision-making
process in them calls for the proposed review.”
In Jamadar v Attorney General (Dept of Immigration) [2000 –
2001] MLR 175 (HC) Chimasula Phiri J stated:
“A decision of an inferior court or a public authority may be
quashed where the court or authority acted without jurisdiction or
exceeded is jurisdiction or failed to comply with the rules of natural
justice in a case where those rules are applicable or where the
decision is unreasonable in the Wednesbury sense. The function of
the court is to see that lawful authority is not abused by unfair
treatment. Judicial review applies whether or not there is some
avenue or appeal against the decision on the merits. In judicial
review proceedings, the court can grant orders or mandamus,
prohibition, and certiorari. The court too has power in judicial
review proceedings to grant declarations and injunctions, and to
award damages.”
What is not Judicial Review?
• Judicial review is not a Suit.
• Suits relate to actions founded on breach of contract or commission of a
tort, e.g. failure to pay for contract or false imprisonment .
• Suits against the Government or Public Officers are governed by the Civil
Procedure (Suits by or Against Government or Public Officers) Act.
• With suits, you sue the Attorney General. With Judicial Review you sue
the Public Authority or Public Officer directly involved in the making of
the decision.
• Section 3 of the above Act reads:
• 3.— (1) Save as may otherwise expressly be provided by any Act, suits by or
against the Government shall be instituted by or against the Attorney General.
Such suits shall be instituted and tried in the same manner as suits to which the
Government is not a party.
With suits, you can only sue on expiration of 90
days after giving notice of intention to sue to the
Attorney General.
Section 4 of the above Act provides: . No suit shall be
instituted against the Government, or against any public officer until the expiration of
three months next after notice in writing has been, in the case of the Government,
delivered to or left at
the office of the Attorney General…
With Judicial Review, you have to commence it
within 3 months from the date of impugned
decision.
Order 19, Rule 20(5) of the CPR, 2017 provides: (5) Subject to sub-rule (6), an
application for judicial review under sub rule (3) shall be filed promptly
and shall be made not later than 3 months of the decision.
Suits are commenced using a Summons under Order 5, rule 1 of CPR,
2017. It provides:
1. Unless otherwise provided under these Rules or any other written
law, a proceeding shall be commenced by filing a summons in Form 1.
2. A summons shall__
(a) specifically state the relief claimed by the claimant;
(b) contain a statement of case;
(c) set out the address that is to be the claimant’s address for service of
documents; and
(d) have with it a form of response that may be completed by the defendant.

On the other hand, Judicial Review is commenced under Order 20, Rule
20(3) of the CPR, 2017 and it provides:
(3) Subject to sub-rule (3), an application for judicial review shall be
commenced ex-parte with the permission of the Court.
CONCEPTUAL BASIS FOR JUDICIAL REVIEW-
SOURCES OF JUDICIAL REVIEW
• Section 108 (2) of the Constitution.
• In The State (On application of Chokani Mhango) vs Comptroller of
Statutory Corporation and others- Judicial Review case no: 48 of 2021
it was held by Madise J that: “Judicial Review jurisdiction of the High
Court is in Section 108(2) of the Constitution which reads:- The High
Court shall have original jurisdiction to review any law, and any
action or decision of the Government for conformity with this
Constitution.”
Section 43 of the Constitution
It provides that:
43. Every person shall have the right to—
(a) lawful and procedurally fair administrative action,
which is justifiable in relation to reasons given where his
or her rights, freedoms, legitimate expectations or
interests are affected or threatened; and
(b) be furnished with reasons, in writing, for
administrative action where his or her rights, freedoms,
legitimate expectations or interests are affected.
Renowned Author and Academician, Prof
Danwood Chirwa writing in his book Human
Rights under the Malawi Constitution
had this to say about the importance of
Section 43 in Judicial Review discourse:
“It is therefore fair to conclude that S.
43 is nothing short of revolutionary. Not
only has S. 43 fundamentally altered
the conceptual basis of judicial review,
it has also replaced the more restrictive
grounds of review with more searching
ones, thereby laying the grounds for an
era of greater public accountability.”
Grounds for Judicial Review
• Found in Order 19, Rule 20(1) of CPR, 2017 which provides as follows:
20.__(1) Judicial review shall cover the review of__
(a) a law, an action or a decision of the Government or a
public officer for conformity with the Constitution; or
(b) a decision, action or failure to act in relation to the
exercise of a public function in order to determine__
(i) its lawfulness;
(ii) its procedural fairness;
(iii) its justification of the reasons provided, if any; or
(iv) bad faith, if any,
where a right, freedom, interests or legitimate
RELIEFS/REMEDIES IN JUDICIAL
REVIEW
• A LIKE ORDER TO CERTIORARI- a quashing order
• A LIKE ORDER TO MANDAMUS- a mandatory order
• A DECLARATION
• DAMAGES
• INJUNCTION
The above reliefs are found in Order
19, Rule 21 and 22 of the CPR,
2017 as follows:
21. An application for a mandatory order, a prohibiting
order or a
quashing order shall be made with an application to the
Court for judicial review.

22. An application for a declaration or an injunction shall

be made with
an application to the Court for judicial review and the Court
may grant a
declaration or injunction where it considers that it would
be in the interests of justice to do so.
PART II:
PRACTICE AND PROCEDURE
• HOW TO COMMENCE AND PROSECUTE A JUDICIAL REVIEW
PROCEEDING?
• It is a 2-tier procedure.
• Application for permission to apply for judicial review.
• Application for judicial review proper.
APPLICATION FOR PERMISSION TO APPLY FOR
JUDICIAL REVIEW
• Brought under Order 19, Rule 20(3) and (4) of the CPR,
2017 which read as follows:
(3) Subject to sub-rule (3), an application for judicial review shall
be
commenced ex-parte with the permission of the Court.
(4) The Court may upon hearing an ex parte hearing direct an
inter-partes hearing.
In The state vs Malawi Communications Regulatory
Authority, Ex Parte Francis Bisika (Judicial Review No: 71 of
2017) it was held that:
The Ex parte Notice must be accompanied
by:
(1) Form 86A
(2) Sworn Statement verifying the facts
(3) Skeleton Arguments

Showcase the above using the documents in

- State on Application of Africa Fertilizers Limited v Malawi Bureau

of Standards (Civil Review Cause 19 of 2021)
If application for permission to apply for judicial review is denied, the
remedy is not to appeal but to submit a fresh application in the Supreme
Court of Appeal: See the following case authorities:
The State [On The Application Of Flatland Timbers Ltd] vs Department Of Forestry [Director of Forestry], MSCA Civil
Cause Number 25 of 2021 [unreported];
The State [on the Application of Gertrude Hiwa] vs Office of the President & Cabinet & Secretary to the President and
Cabinet, MSCA Civil Appel Case Number 1 of 2021;
The State [on the Application of Ashraf Lunat] vs Inspector General of Police, MSCA Civil Appeal Case Number 48 of
2021; and
The State [On The Application of Malawi Revenue Authority] vs Chairperson of the Industrial Relations Court, MSCA
Case Number 56 of 2021.

The application to the MSCA must be submitted within 7 days from the date the High Court denies the
application.
Once permission is granted, then you file the actual
application for judicial review.

This can simply be a 1-paged Motion or Notice of

Application for Judicial Review where you simply state that
you shall rely on all the documents that were used in
support of the application for permission to apply for
judicial review- State on

Application of Africa Fertilizers Limited v Malawi Bureau of

Standards Civil Review Cause 19 of 2021 HC
SERVICE OF THE DOCUMENTS
• Order 19, Rule 23 of the CPR, 2017 provides:
• 23.―(1) An application for judicial review shall set out the grounds for
making the application and shall be supported by a sworn statement.
(3) An application under sub rule (1) shall be served on__
(a) the defendant within 28 days from the date of filing the
application;
(b) any other person who is directly affected by the application,
within 28 days of filing the application; and
(c) any other person the Court may order that he may be added as a
party, within 28 days of the order.
DEFENCE AND DEFAULT OF DEFENCE

• Upon being served, the Defendant has 14 days to enter Defence

supported by Sworn statement;
• Order 19, Rule 24 of the CPR, 2017 provides:
24. The defendant shall, within 14 days of service of the
application, file a defence supported by a sworn statement.

Failure to file Defence does not result in making an application to

enter default judgment. There is no procedure for entering default
judgments in judicial review proceedings. The matter still proceeds
to a hearing.
Under Order 19, Rule 25 of the CPR, 2017, once a Defence is
entered, then the matter proceeds to a Scheduling Conference.
25. The Court shall set down a date for a scheduling conference not
later than 28 days from the date of filing the defence and Order 14
shall, with the necessary adaptation, apply to the application under
this Part.

As to what happens at a Scheduling Conference;

Order 14, Rule 4 of the CPR, 2017 provides that:
(4) The Judge shall make directions at the scheduling conference on
the conduct of the trial.
The Directions would include: (a) Issues that must go for trial, (b)
any amendments to be made, (c ) exchange of documents, (d)
preparation of the paginated Trial Bundle and (e) mode of giving
evidence.
APPEALS
• Appeal against a final judgment is a matter of right.
• But never appeal against an interlocutory judgment. E.g. A ruling refusing an
application to discharge an order granting permission to apply for judicial review.
(See the MERA/OMBUDSMAN case).
• The jurisprudence from the Supreme Court of appeal is that it will only deal with
an appeal once the High Court has dealt with the matter to its finality.
THANK YOU